Daily Comment on News and Issues of Interest to Michigan Lawyers

02/26/2013

Weapons in the Public Square: Greeks, Founding Fathers, and a Former Michigan Supreme Court Justice

There's no more fertile field in which to contemplate textualism and originalism these days than the Second Amendment. In Michigan, one need look no further than this amicus brief (PDF) authored by former Michigan Supreme Court justice Cliff Taylor, in the case about the right to carry weapons openly in public libraries, Capital Area District Library v Michigan Open Carry Inc. In it, Taylor cites law review articles by two of his former colleagues, Chief Justice Young's, "A Judicial Traditionalist Confronts Justice Brennan's School of Judicial Philosophy," 33 Okla. City U. L. Rev. 263, 272-273 (2008), and Justice Markman's, "An Interpretivist Judge and the Media," 32 Harv. J. of L. and Pub. Pol. 149 (2009). The brief is not aimed at so much at shooting down the right to bear arms in libraries as at defending a view of statutory construction:

This Court has spent well over a decade instructing lower courts to read statutes as the Legislature actually wrote them rather than to go beyond the plain language in search of what the Legislature must have "really" intended. Contrary to that instruction, the Court of Appeals majority in this case ruled that when a party invokes the doctrine of "implied field preemption,"a court must look far beyond the language actually used by the gislature to specify the reach of a statute and must instead apply a malleable four-part test to determine how far the Legislature really intended the statute to reach. The Court of Appeals' decision is a serious departure from this Court's statutory interpretation jurisprudence. It threatens to return Michigan to an era of statutory construction "where the decisions were highly unpredictable, inconsistent, and virtually any claim was a possible winner" - a regime this Court has worked to eliminate.

Notably, the brief supports conclusion and reasoning of the dissent (PDF) by Granholm appointee Elizabeth Gleicher over the majority opinion (PDF) of her COA colleagues
Jane Beckering and Henry Saad.

Meanwhile, a Princeton historian harks back to ancient Greece to inform us about what she believes our forefathers really thought about guns in the public square, in this post at The New Yorker:

The pioneers of citizen armies were also pioneers of withdrawing
weapons from the places of civilized life. The ancient Greek armies were
manned exclusively by citizens who brought their own weapons into
battle. Getting to serve in an élite combat unit required being wealthy
enough to afford to buy one’s own armor. It was this vision of citizen
militias, further developed by the Romans, that went on to inspire the
English revolutionaries of the seventeenth century and the American
revolutionaries of the eighteenth—so shaping the values expressed in the
Second Amendment.

Nevertheless, when one early-nineteenth-century
American reflected on what the new American Republic could learn from
the ancient Greeks, he drew attention to another feature that was
widespread in their politics: refraining from carrying weapons in public
spaces. In some cities, this was a matter of custom, in others it was a
matter of law. Citizens carried their weapons abroad when serving in
the military for public defense. But, even in these cities, it was
believed that carrying weapons at home would be tantamount to letting
weapons, not laws, rule.

This point is emphasized in a study of ancient-Greek laws attributed
to Benjamin Franklin, though apparently composed by the founding editor
of the Western Minerva, who published it in 1820. The laws, the
author insisted, “apply with peculiar energy and propriety to the
circumstances of the United States.” Number fifteen in this collection
of a hundred “principles of political wisdom,” drawn from the school of
Pythagoras, legislators for Greek settlements on the Italian mainland,
was this: “Let the laws rule alone. When weapons rule, they kill the
law.”

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Weapons in the Public Square: Greeks, Founding Fathers, and a Former Michigan Supreme Court Justice

There's no more fertile field in which to contemplate textualism and originalism these days than the Second Amendment. In Michigan, one need look no further than this amicus brief (PDF) authored by former Michigan Supreme Court justice Cliff Taylor, in the case about the right to carry weapons openly in public libraries, Capital Area District Library v Michigan Open Carry Inc. In it, Taylor cites law review articles by two of his former colleagues, Chief Justice Young's, "A Judicial Traditionalist Confronts Justice Brennan's School of Judicial Philosophy," 33 Okla. City U. L. Rev. 263, 272-273 (2008), and Justice Markman's, "An Interpretivist Judge and the Media," 32 Harv. J. of L. and Pub. Pol. 149 (2009). The brief is not aimed at so much at shooting down the right to bear arms in libraries as at defending a view of statutory construction:

This Court has spent well over a decade instructing lower courts to read statutes as the Legislature actually wrote them rather than to go beyond the plain language in search of what the Legislature must have "really" intended. Contrary to that instruction, the Court of Appeals majority in this case ruled that when a party invokes the doctrine of "implied field preemption,"a court must look far beyond the language actually used by the gislature to specify the reach of a statute and must instead apply a malleable four-part test to determine how far the Legislature really intended the statute to reach. The Court of Appeals' decision is a serious departure from this Court's statutory interpretation jurisprudence. It threatens to return Michigan to an era of statutory construction "where the decisions were highly unpredictable, inconsistent, and virtually any claim was a possible winner" - a regime this Court has worked to eliminate.

Notably, the brief supports conclusion and reasoning of the dissent (PDF) by Granholm appointee Elizabeth Gleicher over the majority opinion (PDF) of her COA colleagues
Jane Beckering and Henry Saad.

Meanwhile, a Princeton historian harks back to ancient Greece to inform us about what she believes our forefathers really thought about guns in the public square, in this post at The New Yorker:

The pioneers of citizen armies were also pioneers of withdrawing
weapons from the places of civilized life. The ancient Greek armies were
manned exclusively by citizens who brought their own weapons into
battle. Getting to serve in an élite combat unit required being wealthy
enough to afford to buy one’s own armor. It was this vision of citizen
militias, further developed by the Romans, that went on to inspire the
English revolutionaries of the seventeenth century and the American
revolutionaries of the eighteenth—so shaping the values expressed in the
Second Amendment.

Nevertheless, when one early-nineteenth-century
American reflected on what the new American Republic could learn from
the ancient Greeks, he drew attention to another feature that was
widespread in their politics: refraining from carrying weapons in public
spaces. In some cities, this was a matter of custom, in others it was a
matter of law. Citizens carried their weapons abroad when serving in
the military for public defense. But, even in these cities, it was
believed that carrying weapons at home would be tantamount to letting
weapons, not laws, rule.

This point is emphasized in a study of ancient-Greek laws attributed
to Benjamin Franklin, though apparently composed by the founding editor
of the Western Minerva, who published it in 1820. The laws, the
author insisted, “apply with peculiar energy and propriety to the
circumstances of the United States.” Number fifteen in this collection
of a hundred “principles of political wisdom,” drawn from the school of
Pythagoras, legislators for Greek settlements on the Italian mainland,
was this: “Let the laws rule alone. When weapons rule, they kill the
law.”